Fish v. Saul

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

ST. JOSEPH DIVISION

CARL CURTIS FISH, )

)

Plaintiff, )

)

v. ) No. 5:19-06114-CV-RK

)

)

COMMISSIONER OF SOCIAL )

SECURITY ADMINISTRATION; )

)

)

Defendant.

ORDER

Before the Court is Plaintiff Carl Curtis Fish’s appeal brought under 42 U.S.C. § 405(g)

seeking review of Defendant Commissioner of Social Security Administration’s (“SSA”) denial

of disability benefits as rendered in a decision by an Administrative Law Judge (“ALJ”). For the

reasons below, the decision of the ALJ is REVERSED and REMANDED.

Standard of Review

The Court’s review of the ALJ’s decision to deny disability benefits is limited to

determining if the decision “complies with the relevant legal requirements and is supported by

substantial evidence in the record as a whole.” Halverson v. Astrue, 600 F.3d 922, 929

(8th Cir. 2010) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008)). “Substantial evidence

is less than a preponderance of the evidence, but is ‘such relevant evidence as a reasonable mind

would find adequate to support the [ALJ’s] conclusion.’” Grable v. Colvin, 770 F.3d 1196, 1201

(8th Cir. 2014) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). In determining

whether existing evidence is substantial, the Court takes into account “evidence that detracts from

the [ALJ’s] decision as well as evidence that supports it.” Cline v. Colvin, 771 F.3d 1098, 1102

(8th Cir. 2014) (citation omitted). “If the ALJ’s decision is supported by substantial evidence, [the

Court] may not reverse even if substantial evidence would support the opposite outcome or [the

Court] would have decided differently.” Smith v. Colvin, 756 F.3d 621, 625 (8th Cir. 2014) (citing

Davis, 239 F.3d at 966). The Court does not “re-weigh the evidence presented to the ALJ.”

Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing Baldwin v. Barnhart, 349 F.3d

549, 555 (8th Cir. 2003)). The Court must “defer heavily to the findings and conclusions of the

[ALJ].” Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) (citation omitted).

Discussion

By way of overview, the ALJ found Fish to have the following severe impairments:

degenerative disc disease of the lumbar spine; minimal degenerative changes of the right hip;

major depressive disorder, recurrent, without psychotic features; generalized anxiety disorder,

mild; alcohol dependence, severe, reported to be in very early remission; and marijuana

dependence. The ALJ found Fish’s chronic obstructive pulmonary disease (“COPD”), asthma,

hand numbness, and tenderness not medically determinable. However, the ALJ found that none of

Fish’s impairments, whether considered alone or in combination, meet or medically equal the

criteria of one of the listed impairments in 20 CFR Pt. 404, Subpt. P, App. 1 (“Listing”).

Additionally, the ALJ found that despite his limitations, Fish retained the residual functional

capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with

limitations. He can lift, carry, push, and pull up to twenty pounds occasionally and ten pounds

frequently; stand and/or walk six hours in an eight-hour workday; and sit six hours in an eight-

hour workday. He can occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. He

should never climb ladders, ropes, or scaffolds. His balancing is limited to flat surfaces. He should

never be exposed to unprotected heights, hazardous machinery, extreme cold, and vibration. The

claimant is able to understand, remember, and carry out simple instructions that can be learned in

thirty days or less. He can occasionally interact with the public, co-workers, and supervisors. The

claimant would miss more than two days of work per month with substance use. Although the

ALJ found that Fish is unable to perform any past relevant work, the ALJ found that considering

Fish’s age, education, work experience, and RFC, Fish can perform jobs that exist in significant

numbers in the national economy.

On appeal, Fish argues the ALJ erred because the physical RFC was not supported by

substantial evidence, the mental RFC was not supported by substantial evidence, and the ALJ erred

in assessing Fish’s substance abuse. The Court will address each in turn.

I. The ALJ’s Physical RFC was Not Supported by Substantial Evidence

First, Fish argues the physical RFC is unsupported by substantial evidence. Specifically,

Fish argues the opinions of Dr. Horwitz and Dr. Debroy, which were afforded little and partial weight

respectively by the ALJ, do not constitute substantial evidence for the physical limitations provided in

the RFC.

ALJs are tasked with evaluating the evidence taken as a whole, resolving any

inconsistencies, and formulating an RFC finding that reflects a claimant’s functional limitations,

as consistent with the evidence. 20 C.F.R. §§ 404.1545, 404.1546. “It is the function of the [ALJ]

to weigh conflicting evidence and to resolve disagreements among physicians.” Cline v. Colvin,

771 F.3d 1098, 1103 (8th Cir. 2014) (citing Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007));

see also Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008) (same) (citing Wagner v. Astrue, 499

F.3d 842, 848 (8th Cir. 2007)). However, “[b]ecause a claimant’s RFC is a medical question, an

ALJ’s assessment of it must be supported by some medical evidence of the claimant’s ability to

function in the workplace.” Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (quotation and

citation omitted). “The ALJ may not simply draw his own inferences about plaintiff’s functional

ability from medical reports.” Id. (quotation and citation omitted).

Here, there were two medical opinions as to Fish’s physical limitations: the opinions of Dr.

Horowitz and Dr. Debroy. The ALJ discounted the opinions of Dr. Horwitz and afforded the

opinions little weight. (Tr. 18.) The Court finds substantial evidence existed to discount Dr.

Horwitz’s opinions. For instance, while Dr. Horwitz diagnosed Fish with right hip and right knee

osteoarthritis and opined that Fish would need a cane to ambulate, x-rays taken less than one month

later revealed a normal right knee and mild degenerative joint disease of the right hip.

(Tr. 19, 438, 440-41.) The ALJ further noted that Fish was noted to have normal gait and station,

was ambulating well with the use of a cane, that Fish was told surgery would not improve his pain,

and that he was given a right knee brace even though the knee was noted as stable. (Tr. 19; see

also Tr. 516, 698.)

As to the opinion of Dr. Debroy, the ALJ afforded this opinion partial weight. However,

Dr. Debroy did not examine or treat Fish. As a non-examining, non-treating State agency

physician, Dr. Debroy’s opinions are not substantial evidence.1 Jenkins v. Apfel, 196 F.3d 922,

925 (8th Cir. 1999) (“By contrast, the opinion of a consulting physician who examines a claimant

once or not at all does not generally constitute substantial evidence.”) (quotation and citation

omitted); Metz v. Shalala, 49 F.3d 374 (8th Cir. 1995) (“We have stated that the opinion of a

consulting physician who examines a claimant once does not constitute substantial evidence.”)

1 Plaintiff filed his claim in January 2017 before the rules in 20 C.F.R. § 404.1520c took effect.

(citing Hancock v. Secretary, 603 F.2d 739, 740 (8th Cir. 1979)). Additionally, Dr. Debroy issued

his opinions more than a year and a half prior to the ALJ’s decision and Dr. Debroy was unaware

of certain x-rays, MRIs, and other exams. (see Tr. 476, 489, 516, 687.) Thus, Dr. Debroy’s

opinions, do not constitute substantial evidence to support the physical RFC. Frankl v. Shalala,

47 F.3d 935, 938 (8th Cir. 1995) (finding opinions did not constitute substantial evidence where

they failed to take into consideration the entire record).

Although there was substantial evidence to discount the opinions of Dr. Horwitz and afford

partial weight to the opinions of Dr. Debroy, the record contains no opinions, amounting to

substantial evidence, regarding Fish’s capacity and ability to work. Spackman v. Colvin, No. 2:14-

CV-04125-NKL, 2015 WL 518564, at *3 (W.D. Mo. Feb. 9, 2015). The Court recognizes that

while “an ALJ’s assessment [of the RFC] must be supported by some medical evidence of the

claimant’s ability to function in the workplace . . . it is ultimately an administrative determination

reserved to the Commissioner.” Id. (quoting Cox, 495 F.3d at 619 (8th Cir.2007)). However, as

in Spackman, the record contains insufficient evidence for the ALJ to reach an RFC determination

absent additional medical opinions. Id. (citing Wadsworth v. Astrue, 2011 WL 900993 (W.D.

Mo. March 15, 2011) (reversing and remanding the ALJ’s decision when the ALJ discounted the

treating physician’s opinion and the record contained no other medical evidence to support a

determination as to the claimant’s RFC)). The fact that additional medical evidence was needed

is further evinced by the fact the ALJ scheduled a hearing for October 3, 2018, for the purpose of

having a medical expert testify. (Tr. 94.) However, the medical expert never appeared or testified

at the hearing. (Tr. 94-99.) Therefore, because the physical portion of the RFC was not supported

by substantial evidence, the decision of the ALJ will be reversed and remanded to fully develop

the record. See Brown v. Colvin, No. 4:14-CV-00288-NKL, 2014 WL 6750041, at *3 (W.D. Mo.

Dec. 1, 2014) (“The ALJ has a duty to fully and fairly develop the record, and the ALJ should have

sought an opinion from one of Brown's treating physicians or ordered a consultative examination

to assess Brown's RFC. ).

II. The ALJ’s Mental RFC was Supported by Substantial Evidence

Fish next argues the ALJ erred by failing to include limitations for mild to moderate

limitations in concentration, persistence, or pace in the RFC. Fish’s arguments here are without

merit.

To begin, the ALJ did include some limitations including limiting interactions with the

public, co-workers, and supervisors to occasionally and noting the Fish is able to understand,

remember, and carry out simple instructions that can be learned in thirty days or less. (Tr. 18.)

Additionally, to assess Fish’s mental limitations, the ALJ discussed examination evidence, medical

opinions from state agency medical consultants Kim Dempsey, PsyD., and Dr. Thomas. (Tr. 21.)

Dr. Dempsey opined that Fish was not significantly limited in his ability to carry out very short

and simple or detailed instructions, maintaining attention and concentration for extended periods,

performing within a schedule or maintaining regular attendance, sustaining an ordinary routine,

working in coordination with others, making simple work-related decisions, or completing a

normal workday/workweek. (Tr. 109.) Additionally, he had no significant social limitations, but

he was moderately limited with respect to changes in the work setting. (Tr. 109-10.) However, as

the ALJ noted, she did not have the benefit of reviewing subsequent evidence reflecting Fish’s

mental health and alcohol abuse, which supported a finding of disability when substance abuse

was considered. (Tr. 21.)

Dr. Thomas opined that Fish could understand, remember, and carry out simple

instructions. (Tr. 702.) Dr. Thomas also assessed that Fish’s paranoia would be a barrier to

functional relationships with supervisors, coworkers, and the public; and his ability to adapt to

changes would be limited by forgetfulness, depression, anxiety, and paranoia. (Tr. 703.) The ALJ

afforded Dr. Thomas’ opinion partial weight though. (Tr. 21.) Substantial evidence supports that

conclusion. For instance, the record repeatedly notes that Fish denied paranoia, had normal

memory, and had good concentration. (Tr. 436, 654, 656, 658.) As such, the ALJ was not required

to adopt every opinion Dr. Thomas provided.

The ALJ also discussed opinion evidence from Bill Graham, Ph.D., in connection with a

Medicaid application. (Tr. 21.) The ALJ afforded Dr. Graham’s opinion little weight. (Tr. 22.)

Dr. Graham opined that Fish was markedly limited in nearly every category due to anxiety, panic,

confusion when stressed, explosiveness if pressured, poor cognitive functioning, and problem

solving. (Tr. 716-18.) He estimated that Fish would be absent from work more than three times

a month, and he stated that Fish did not have a substance abuse diagnosis. (Tr. 719.) However,

the record clearly demonstrates Fish’s drug and alcohol abuse, that Dr. Graham based his opinion

on a single examination, and Dr. Graham administered no formal testing. Thus, Dr. Graham’s

opinion was properly granted little weight as it was inconsistent with the evidence.

The overall record shows that, despite alcohol abuse, Fish was alert, oriented, and well-

groomed with good eye contact, clear thought processes, normal memory, and good concentration.

(Tr. 436, 507, 510, 513, 516, 524, 656, 658, 660, 664.) He had a pleasant mood, and appropriate

speech and affect. (Tr. 510, 516, 656, 658, 660.) In addition, he reported having no hallucinations,

paranoia, or panic episodes. (Tr. 654, 656, 658, 660, 664.) Fish reported anxiety due to finances

and situational anxiety due to his girlfriend’s surgery and taking care of his grandkids. (Tr. 654,

664, 770, 773); See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (finding depression was

not severe partially because it was situational in nature). Additionally, his anxiety responded to

medication. (Tr. 747, 790). If an impairment is amenable to treatment, it does not support a finding

of total disability. See, e.g., Bernard v. Colvin, 774 F.3d 482, 488 (8th Cir. 2014). Therefore,

substantial evidence supports the ALJ’s mental RFC and the ALJ’s decision will be affirmed on

this point.

III. Assessing Fish’s Substance Abuse

Finally, Fish argues the ALJ erred in assessing his substance abuse because there is no

medical evidence cited by the ALJ as to his functional limitations absent purported substance

abuse. The Court will decline to rule on this issue at this time.

In cases involving drug addiction or alcoholism (“DAA”), the ALJ must determine whether

DAA is material to the determination of disability. There is a six-step process to determine

whether DAA is material, which are:

Step one: does the claimant have DAA?: If no, then no DAA materiality

determination is necessary. If yes, go to Step two.

Step two: Is the claimant disabled including all impairments, including DAA?: If

no, do not determine DAA materiality and deny the claim. If yes, go to step three.

Step three: Is DAA the only impairment? If yes, DAA is material and deny the

claim. If no, go to step four.

Step four: Is the other impairment(s) disabling by itself while the claimant is still

dependent upon or using drugs/alcohol? If no, DAA is material to disability and

deny the claim. If yes, go to step five.

Step five: Does DAA cause or affect the claimant’s medically determinable

impairment(s)? If no, DAA is not material and allow the claim. If yes, but the

other impairment(s) is irreversible or could not improve to the point of non-

disability, DAA is not material and allow the claim. If yes, and DAA could be

material, go to step six.

Step six: Would the other impairment(s) improve to the point of non-disability in

the absence of DAA? If yes, DAA is material and deny the claim. If no, DAA is

not material and allow the claim.

Whittle v. Berryhill, No. 4:18-CV-04095-VLD, 2019 WL 2124247, at *28–29 (D.S.D. May 15,

2019) (citing SSR 13-2p, § 5). A reconsideration of Plaintiff’s physical impairments could affect

the disability determination with or without DAA. Thus, because the ALJ’s reconsideration of the

physical impairments may alter a determination under the DAA steps, the Court will decline to

rule on this issue at this time. On remand, the ALJ should reconsider Fish’s DAA and its affect

on a disability determination.

Conclusion

Having carefully reviewed the record before the Court and the parties’ submissions on

appeal, the Court concludes that the ALJ’s decision as a whole is not supported by substantial

evidence.

IT IS THEREFORE ORDERED that the decision of the ALJ is REVERSED and

REMANDED. On remand, the ALJ shall reconsider Fish’s physical impairments and fully

develop the record. Because such reconsideration may affect the ALJ’s determination on DAA,

the ALJ shall reconsider Fish’s substance abuse as well.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: September 24, 2020